State of Louisiana v. Jason Bennett

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-432

STATE OF LOUISIANA

VERSUS

JASON BENNETT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 11094-13
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John E. Conery, Judges.

SENTENCE AFFIRMED IN PART;
REMANDED FOR PARTIAL RESENTENCING.

John Foster DeRosier
District Attorney - 14th Judicial District
Karen C. McLellan
Assistant District Attorney - 14th Judicial District
P. O. Box 3206
Lake Charles, LA 70602-3206
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Elizabeth Brooks Hollins
Assistant District Attorney – 14th Judicial District
901 Lakeshore Drive - Suite 800
Lake Charles, LA 70629
Telephone: (337) 437-3400
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Tara B. Hawkins
Chief Felony Prosecutor – 14th Judicial District
901 Lakeshore Drive – Suite 600
Lake Charles, LA 70602-2142
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Brent A. Hawkins
P. O. Box 3752
Lake Charles, LA 70602
Telephone: (337) 210-8811
COUNSEL FOR:
Defendant/Appellant - Jason Bennett

THIBODEAUX, Chief Judge.

Defendant Jason Bennett was charged by a bill of indictment with one

count of vehicular homicide, in violation of La.R.S. 14:32.1. Mr. Bennett pled no

contest to the charge and was sentenced to twenty years at hard labor with the

Department of Corrections, with eight of those years suspended and five years of

supervised probation upon release. Mr. Bennett’s motion to reconsider, alleging

that the sentence he received was excessive because he did not receive credit for

the time he spent incarcerated on another charge in Livingston Parish during the

pendency of this case, was denied. Mr. Bennett now appeals claiming that his

sentence is unconstitutionally excessive. The State alleges that the sentence is

illegally lenient because of the trial court’s failure to impose a parole, probation or

suspension of sentence restriction. We conclude the sentence is not excessive, and

we remand for the correction of the illegally lenient sentence.

I.

ISSUES

We must determine:

(1) whether the twenty-year sentence imposed by the
trial court is an unconstitutionally excessive
sentence for Mr. Bennett; and

(2) whether the sentence is illegally lenient pursuant to
La.R.S. 14:32.1(B).

II.

FACTS AND PROCEDURAL HISTORY

On September 24, 2012, at approximately 4:20 am, Mr. Bennett was

involved in a two-car collision on Interstate 10 on the bridge crossing the Calcasieu

River. The vehicle driven by Mr. Bennett was occupied by three other individuals,

including Derrick Barton, who was killed as a result of the accident.

Mr. Bennett’s vehicle collided with a truck that was being driven

ahead of him. Mr. Bennett attempted to avoid impact with the vehicle by steering

left into the left-hand lane of the interstate. He was unsuccessful in avoiding

contact. The contact with the truck caused the death of the front seat passenger of

Mr. Bennett’s car, Mr. Derrick Barton. Subsequent lab results from the blood

work obtained from Mr. Bennett on the morning of the crash revealed that he

tested positive for methamphetamine, amphetamine, and opiates, specifically

Oxycodone.

Mr. Bennett was charged by bill of indictment with one count of

vehicular homicide. Mr. Bennett pled no contest to the charge and was sentenced

to twenty years at hard labor with the Department of Corrections, with eight of

those years being suspended and five years of supervised probation upon release;

he was ordered to pay $75 a month in supervision fees while on probation, as well

as $2,000 fine plus court costs to be paid during his probationary time; he was

further ordered to pay $400 to the Indigent Defender Board for his representation

and was offered the opportunity to do community service in lieu of his payment for

his supervision fees.

III.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed

by the court for errors patent on the face of the record. After reviewing the record,

we find there is one error patent. The trial court did not impose the required

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parole, probation or suspension of sentence restriction and mandatory substance

abuse program as part of Mr. Bennett’s sentence.

IV.

LAW AND DISCUSSION

Illegal Leniency

In his assignment of error, Mr. Bennett contends that his sentence is

unconstitutionally excessive. However, the State has properly raised an illegal

leniency claim regarding the trail court’s failure to impose a parole restriction and

required participation in a substance abuse program, as required by La.R.S.

14:32.1(B).1 Under La.R.S 14:32.1(B): “At least three years of the sentence of

imprisonment shall be imposed without benefit of probation, parole, or suspension

of sentence.” Additionally, La.R.S. 14:32.1(B) also states that the “court shall

require the offender to participate in a court-approved substance abuse program

and may require the offender to participate in a court-approved driver improvement

program.”

La.R.S. 14:32.1(B) gives the trial court discretion with regard to how

much of Mr. Bennett’s sentence is to be served without parole eligibility, requiring

only that the minimum be three years. Because La.R.S. 14:32.1(B) requires that at

least three years be imposed without benefit of parole, probation, or suspension of

sentence, Mr. Bennett’s sentence is illegally lenient. Furthermore, La.R.S. 14:32.1

requires that the court order Mr. Bennett to “participate in a court-approved

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The trial judge’s comments during the sentencing hearing recognized that the mandatory
minimum sentence for a conviction of vehicular homicide included at least three years of
imprisonment without benefit of probation, parole, or suspension of sentence. This suggests that
the trial judge inadvertently failed to include such a requirement in the imposition of sentence.

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substance abuse program.” For these reasons, part of Mr. Bennett’s sentence must

be remanded to the trial court for resentencing under La.R.S. 14:32.1(B).

Excessiveness

Mr. Bennett argues that he is not among the most egregious and

blameworthy offenders warranting a twenty-year sentence for the offense of

vehicular homicide given the facts and circumstances of this case. Mr. Bennett

contends that because he took accountability for his actions the same day the

accident occurred, cooperated with law enforcement, and exhibited a sense of

remorse, the sentence imposed by the trial court was unconstitutionally excessive.

We disagree.

The sentencing range for a first conviction of vehicular homicide

under La.R.S. 14:32.1 is no less than a $2,000 fine or more than a $15,000 fine,

and the defendant shall be imprisoned with or without hard labor for not less than

five years or more than thirty years. Using these factors Mr. Bennett was

appropriately sentenced. He pled no contest to vehicular homicide. Mr. Bennett

was sentenced to twenty years with eight years suspended and a fine of $2,000. He

did not receive the maximum sentence, rather the sentence was at the mid-range

level.

Standard of Review

A sentence may be excessive, even if it falls within the statutory

guidelines, “if the punishment is so grossly disproportionate to the severity of the

crime that it shocks the sense of justice and serves no purpose other than to inflict

pain and suffering.” State v. Oliphant, 48,998 (La.App. 2 Cir. 4/9/14), 137 So.3d

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142, 144. In State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127, 130,

this Court stated the standard of review for an excessiveness claim:

The trial judge is given a wide discretion in the
imposition of sentences within the statutory limits, and
the sentence imposed by him should not be set aside as
excessive in the absence of a manifest abuse of
discretion. A trial judge is in the best position to
consider the aggravating and mitigating circumstances of
a particular case, and therefore, is given broad discretion
in sentencing. On review, an appellate court does not
determine whether another sentence may have been more
appropriate, but whether the trial court abused its
discretion.

In reviewing the trial judge’s sentencing decision there are three

factors to be considered: (1) the nature of the crime; (2) the nature and background

of the offender; and (3) the sentence imposed for similar crimes by the same court

and other courts. State v. Morris, 10-1278 (La.App. 3 Cir. 5/4/11), 63 So.3d 389,

391. Although comparison with other cases is an element of sentence review, “the

focus of sentence review remains on the character and propensities of the offender

and the circumstances of the offense.” State v. LeBlanc, 09-1355 (La. 7/6/10), 41

So.3d 1168, 1173.

Discussion

While Mr. Bennett was a first felony offender at the time of his plea,

there was a pending drug possession charge against him when this vehicular

accident occurred. Mr. Bennett was subsequently put on probation for the

possession charge after this offense. At the sentencing hearing, the trial court

found Mr. Bennett’s previous arrest and potential jail time as a result of drug usage

to be an aggravating factor. Furthermore, the trial court found that Mr. Bennett’s

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continual drug use created an undue risk that during a period of suspended

sentence he would commit another crime.

In addition, the trial court found that a lesser sentence would

deprecate the seriousness of Mr. Bennett’s crime. At the time of this offense Mr.

Bennett had oxycodone, amphetamine, and methamphetamine in his system. The

trial judge noted that Mr. Bennett should have known of the vulnerability of the

passengers, as well as himself, because of his impairment. His drug use created a

risk of great bodily harm or death to more than one person and was considered an

aggravating factor. The trial judge poignantly noted “[t]he offenses clearly

resulted in significant permanent injury to the family, loss of a father, loss of a son.

He was, as indicated before, in control of the situation in operating the vehicle and

accepting responsibility.”

The Morris factors require that the court look at sentences imposed

for similar crimes by the same court and other courts. Morris, 63 So.3d 389. In

State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, this Court

affirmed the sixteen-year, hard labor sentence of a defendant convicted of

vehicular homicide. The court noted that while the defendant had no prior felony

convictions, the fact that his blood alcohol concentration was twice the legal limit

at the time of the offense, and that his actions resulted in the death of a human

being and serious bodily injury to two others, the sentence imposed was

appropriate.

In LeBlanc, 41 So.3d 1168, the Louisiana Supreme Court held that the

trial court’s sentence of the maximum term of thirty-year imprisonment at hard

labor, with three years without benefit of parole, was not an excessive sentence for

defendant convicted of vehicular homicide. In affirming the trial court’s sentence,

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the court noted that because the defendant was addicted to drugs she posed an

undue risk of committing other crimes if given a suspended sentence. The court

further acknowledged the trial court’s statement that although the defendant was a

first offender she had knowingly created a risk of death or great bodily harm to

more than one person by driving under the impairment of a cocktail of illegal

drugs.

Last, in Oliphant, 137 So.3d 142, the second circuit affirmed the

eighteen-year sentence of a defendant who pled guilty to vehicular homicide after

killing one person and injuring another. In affirming the trial court’s sentencing

decision, the court noted that there was an undue risk that during the period of a

suspended sentence or probation the defendant would commit another crime and

that any lesser sentence than the one the court had imposed would deprecate the

seriousness of the defendant’s crime. Id. “Considering the severe consequences of

his crime, one man was killed and another injured, we cannot say the sentence was

excessive.” Id. at 148.

Mr. Bennett has failed to show how the trial court abused its

discretion. A lesser sentence would have deprecated the seriousness of this offense

which resulted in the death of Derrick Barton. At the time of the accident, Mr.

Bennett was impaired and should have been aware of the great risk he placed on

both himself and his passengers by driving under the influence. Mr. Bennett was

fairly and appropriately sentenced and has failed to demonstrate that the trial court

imposed an unconstitutionally excessive sentence.

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V.

CONCLUSION

For the following reasons, we find that Mr. Bennett’s sentence is not

unconstitutionally excessive. We affirm Mr. Bennett’s sentence in part and

remand in part for resentencing pursuant to La.R.S. 14:32.1(B).

SENTENCE AFFIRMED IN PART; REMANDED FOR PARTIAL

RESENTENCING.

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